UPDATE: The Death of the Independent Contractor
Recently we provided an update on the continuing saga of the controversial new court decision and new California law which aim to significantly restrict which workers can be classified as independent contractors. Here are some new developments in this contentious case.
In late 2018 the California Trucking Association (“CTA”) filed a lawsuit in response to the landmark California Supreme Court decision in Dynamex Operations West v. Superior Court of Los Angeles (“Dynamex”). In November 2019 the CTA amended its complaint to include arguments designed to prevent the enforcement of Assembly Bill 5 (“AB 5”), which is set to go into effect on January 1, 2020.
The CTA’s suit is currently pending in the United States District Court for the Southern District of California. The CTA seeks to prevent enforcement by arguing that AB 5 violates the Commerce and Supremacy Clauses of the United States Constitution, as well as provisions of other federal law.
In addition to the CTA lawsuit, protestors showed up in National City on December 14, 2019 to protest AB 5 and Assemblywomen Lorena Gonzalez, who authored the new law. Additionally, ride share companies have pledged a reported $100 million to support ballot measures that would overturn the bill.
On September 18, 2019, California Governor Gavin Newsom signed Assembly Bill 5 (“AB 5”) shortly after it passed the California Assembly and Senate. As we discussed in our articles over the last several months, the new law creates significant restrictions on how California employers classify their workers.
To refresh your understanding, the controversial new law sets forth the intent of the Legislature to codify the decision in the Dynamex case and clarify its application. In Dynamex, the court abandoned the long-standing “control test,” instead applying a much stricter “ABC test” used to determine whether a worker is properly classified as an independent contractor.
Under the ABC test, a worker will be deemed to be an employee for wage order purposes, unless the putative employer proves:
- that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and it fact;
- that the worker performs work that is outside the usual course of the hiring entity’s business; and
- that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Importantly, each of these requirements needs to be met in order for the putative employer to rebut the presumption that a worker is an employee. It is also important to keep in mind that the Dynamex ruling is being applied retroactively, which means that the ABC test will be applied to cases going forward, as well as to disputes dating back to before the new test was articulated.
AB 5 provides that the factors of the ABC test be applied in order to determine the status of a worker as an employee or independent contractor for all provisions of the Labor Code and the Unemployment Insurance Code, except if a statutory exemption exists. The new law currently exempts a number of occupations from the new statutory scheme, including doctors, securities broker-dealers, insurance agents, accountants, barbers, hairstylists, lawyers, engineers, architects, and a number of other professions.
Despite aggressive public campaigns to defeat the bill, major gig employers like Uber and Lyft will now have to comply with AB 5. In fact, it is estimated that many thousands of California workers across hundreds of industries throughout not only the “gig” economy but elsewhere will now be classified as employees. Therefore, beginning in January 2020, not only will these workers be reclassified as employees, but employers will be required to comply with minimum wage and overtime rules, and provide certain worker compensation protections, including paid sick leave and a myriad of other employment benefits.
Just as the application of the Dynamex applies retroactively to existing court claims, the new law will also apply retroactively to existing misclassification claims. Misclassification is a very expensive mistake. Regardless of the employers’ size, AB 5 applies to all California employers. Now is the time for employers to take action to change worker classification, conduct employment audits and revise employment agreements.
Despite the uncertainty regarding AB 5, the new law is still set to go into effect January 1, 2020. As a result, all employers who currently utilize independent contractors should contact an attorney to review their current situation and discuss necessary changes relative to their workforce classification. We will continue to monitor the situation and keep you informed as new information becomes available.”